Anti-scab and telecommuting provisions | Towards a modernization of the labor code?

Julien Arsenault
The Press

Are teleworkers really protected by anti-scab provisions? The debate will take place before the Superior Court, but unions and legal specialists would like Quebec to decide by modernizing the Labor Code, which does not seem to be in the plans for the moment.

The Administrative Labor Tribunal (TAT) broadened the scope of the definition of the employer’s establishment in a decision handed down last November, thereby opening the door to increased protection for teleworkers and all union members whose work can be done remotely. This decision is the subject of an application for judicial review, which means that the Superior Court of Quebec will have to consider it. The Tribunal’s decision sets precedent, but it is contested.

“It’s important because a judge says what many authors have suggested in their writings,” says François Longpré, a lawyer specializing in labor law at BLG. Telecommuting will remain. Employees who will be teleworking after the pandemic would see their situation regulated. »

The TAT had been called upon in connection with a lockout at the Joliette cement plant between CRH Canada and a local section of the Unifor union, which accused the employer of having used replacement workers. Four people, including one working from home, violated the anti-scab provisions of the Labor Code, the Court found, partially agreeing with the complainants.

A broader concept

This decision expands the notion of the employer’s establishment. Previously, to be considered a scab, a person had to perform the work within the walls of the employer’s establishment.

This provision is difficult to circumvent in the case of workers in a food processing plant or an aircraft assembly line. But the portrait is different in the case of employees who are more and more likely to work from home.

« [La décision du TAT] comes to restore a balance of power which was almost nil in several companies since the start of the pandemic, ”explains the secretary general of the FTQ, Denis Bolduc, even if the judgment is contested.

Almost 15 years after the lockout in Quebec newspaper, the ex-journalist and president of the daily’s union hopes that the request for appeal will not cause a step backwards.

At the time of the labor dispute in Quebec newspaper, which ran from April 2007 to July 2008, the Court of Appeal ruled that you had to work in the employer’s establishment to be considered a replacement worker.

“We must stop this dinosaurian reading of the Labor Code,” said Mr. Bolduc. At Journal, the higher courts had referred to the text of the Labor Code to the letter. They had not made a broader interpretation. The context has changed. »

More and more complex

With the dematerialization of workplaces which is set to continue, it may become increasingly difficult to clearly define the home base of employees. In the longer term, other issues will emerge.

Rather than asking the courts to decide, the people interviewed by The Press believe that Quebec should consider modernizing the Labor Code instead.

“Before, we entered the factory with our lunch box and we came home in the evening, says François Enault, first vice-president of the CSN. This is no longer the case. The notion of establishment must be broadened. There will be pressure on politicians to avoid dragging on legal debates. »

Partner in labor law at Langlois Avocats, Yann Bernard agrees. He believes that the conclusions of the TAT come to answer certain questions, but temporarily.

For Quebec, a modification of the Labor Code is a delicate exercise, underlines M^e Bernard, since it is necessary to make sure not to “render the lockout ineffective” and prevent a “strike from becoming ineffective”.

“We can think of something that would go towards the nature of the functions rather than a place of establishment called to be more and more dematerialized, underlines the lawyer. We need to know who is part of the accreditation. With a location, it’s easier. Functions, we can change that in a single email. »

In a statement sent to The Press, the Minister of Labour, Employment and Social Solidarity, Jean Boulet, reiterated that “the broadening of the notion of establishment” by administrative judge Morand was “consistent” with the “position” of his ministry. He declined to say more, citing the appeal.

“I continue, with my teams, to monitor the various issues surrounding the world of work,” he wrote.

M^e Bernard adds that the TAT concluded last month that the fall of a teleworker on the stairs of his home to go to eat was a work accident covered by the Act respecting industrial accidents and occupational diseases.

In this context, if the home is considered an “extension” of the workplace, the same goes for the “collective rights” of these employees, he believes.

A challenge for union organizing

If upheld, will the conclusions of the Administrative Labor Tribunal (TAT) on the rights of teleworkers give ammunition to unions looking for new members? This type of business card would come with several challenges in trying to reach and convince these employees.

“The big factories in Quebec are unionized,” says the first vice-president of the CSN, François Enault. If we want to be sure to renew ourselves, it is clear that we must turn to the unionization of other groups. »

According to data from the Ministry of Labour, Employment and Social Solidarity, the unionization rate, or the proportion of salaried workers covered by a collective agreement, was 39% in 2019.

Unsurprisingly, the education (81%), civil service (80.5%), public services (77%), health (64%) and construction (55%) sectors come in head of list. At the other end of the spectrum are professional, scientific and technical services (8%) and finance, insurance, real estate and leasing (18%).

“By the very nature of telework, we are talking about office workers, information technology and the knowledge industry, where there is relatively little unionization,” said François Longpré, lawyer specializing in labor law. at BLG.

The great seduction

He does not expect a paradigm shift despite the TAT’s findings. Yann Bernard, labor law partner at Langlois Avocats, believes that some teleworkers could listen if asked. The lawyer specifies, however, that these are sectors where trade unionism is not necessarily popular.

If they hope to achieve a breakthrough, however, the unions will have to be imaginative. How can you solicit and convince employees who do not work in the same place?

“It is clear that it is a challenge, recognizes Mr. Enault. We will have to turn to new technologies. You can’t be in front of a factory or a business and wait for people at the door. We are talking about employees who sometimes do not know who they are working with. »

At the FTQ, general secretary Denis Bolduc sees things the same way.

“Employees are no longer grouped together at the same address, but scattered, not just in the city where the company is located, but throughout the region,” he says. A Montreal company could easily have employees working from home in Saint-Esprit. Finding them is a good contract. »